S.91/92 Evidence Act Exclude Oral Evidence, Forbid Proving Contents Of Writing Otherwise Than By Writing Itself: Gujarat High Court

1. Whether the lower courts had misread and misinterpreted the documentary evidence on record.
2. Whether the Defendants had become owner of the suit property due to adverse possession since they were in occupation of the portion prior to 1964/
3. Whether as per Secs 91 and 92 of the Act, it was open to the Defendants to lead oral evidence to contradict the sale deed and mortgage deed.

The High Court answered all the questions in the negative.

To address the first and third questions, the High Court interpreted Sec 91 and 92 of the Evidence Act to conclude that Sec 91 forbids proving the contents of writing other than by writing itself. The High Court ventured forth to explain thus:

"Under this Section, when the terms of contract, grant, or any disposition of any property have been reduced to form the document; or when any matter is required by law to be reduced to form of a document, then the document itself or secondary evidence of its contents, must be put in the evidence."

As regards Sec 92, it was explained that Sec 92 provided that certain exceptions where oral evidence could be accepted, namely:

1. Any fact which could invalidate any document or entitle any person to any decree relating to fraud, illegality etc.
2. Any separate oral agreement where the matter on which the document was silent and which was not inconsistent with its terms.
3. Any separate oral agreement constituting a condition precedent to the attacking of any obligation under the document, may be proved.
4. Any subsequent oral agreement to rescind or modify any contract, grant or disposition of property except when such contract was required to be in writing.
5. Any usage or custom by which incidents not expressly mentioned in any contract are usually annexed to such contracts, may be provided if they are not repugnant to the express terms.
6. Any fact which shows in what manner the language of the document was related to.

Keeping this distinction and the exceptions in view, Justice Thaker opined that there were no facts presented by Defendants to suggest that their defence fell within any exception of Sec 92, since the documents placed on record were relating to the disposition of immovable property.

The High Court also rejected the contention that the Appellants had become owners of the property by adverse possession since at one point they claimed that they were owners of the property and at another point, they claimed that they were owner of the property due to adverse possession. They had made repairs and expenditure on the property after taking consent of the Respondent and were living on the premises with the Respondent's permission. Under these circumstances, adverse possession could not be claimed.

Accordingly, the Second Appeal was rejected.

Case No.: C/SA/117/1988

Case Title: NAVINCHANDRA SOMCHAND, DIED THROUGH HIS HEIRS & 1 other(s) v/s HEIRS OF SOMCHAND BECHARDAS & 6 other(s)

Citation: 2022 LiveLaw (Guj) 270

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